Shankar Gulabrao Dhavral vs State Of Maharashtra

(PER: SHIVKUMAR DIGE, J.)

The present appeal is preferred against the judgment and order passed by the learned Sessions Judge, Wardha, whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000/-, in default, to suffer rigourous imprisonment for six months.

The prosecution’s case, in brief, is that on 07.04.2014,, PW-1, Digambar Bhankhede, Head Constable and PW-7, Amol Barde, Constable, PSI Sanjay Mate and other police personnel were deputed for prohibition raid duty in view of the forthcoming Lok Sabha elections. At about 7.30 p.m, the police party reached near the village Sawali Budruk and proceeded towards the appellants house to conduct a raid, as the appellant was allegedly involved in the illegal liquor trade. Upon reaching the appellants house, the police personal noticed, the appellant standing and moving near his house under an electric pole, holding a weapon in his hand. On noticing the police party, he fled from the spot. The police personal attempted to chase him but could not apprehend him as he manged to escape in the darkness. Thereafter, the police party approached the appellant’s house and found a women lying in an injured condition with stab injuries on her stomach. She was subsequently identified as the appellant’s wife and found to be dead. PW-1 (Digambar Bhankhede) and PW-7 (Amol Barde) immediately reported the incident to PW-10 i.e. PI Mr. Wanjari. Thereafter, PW-1 lodged report at the police station, on the basis of which the FIR came to be registered against the appellant. During the course of the investigation, the appellant was arrested. The sword stick (Gupti) used in the commission of offense and the clothes of the appellant were recovered. Upon completion of the investigation, a charge-sheet was filed against the appellant. Considering oral and documentary evidence produced on record, the learned Sessions Judge convicted the appellant as referred above.

It is contention of learned counsel for the appellant that the prosecution case is based on circumstantial evidence and appellant has been falsely implicated in present case. The panch witnesses examined in connection with the spot panchanama, seizure of cloth panchanama, and recovery of weapon are turned hostile and nothing was elicited in their cross-examination to substantiate the prosecution case. Learned counsel further submitted that although the appellant was arrested on the day following the incident, the prosecution evidence on record does not establish the circumstances in which he was apprehended or whether he had surrendered before the police. The chemical analyzers report concerning the bloodstains allegedly found on the weapon is inconclusive and does not establish any connection between the appellant, the weapon and the deceased. However, these facts were not considered by the learned Sessions Judge, and he requested to allow the appeal.

Per contra, it is contention of learned APP that no specific defence was taken by the appellant before Trial Court. The prosecution has established the guilt of the appellant beyond reasonable doubt. The learned APP further submitted that the appellant suspected the character of his wife and frequent disputes arisen between them. On that ground, the appellant brutally assaulted the deceased with sword stick (Gupti), and fled from spot upon noticing the police party. The learned APP further submitted that PW-1 and PW-7, who are police personnel, are independent witnesses. They had seen the appellant holding a weapon roaming near his house and after noticing these witnesses, the appellant ran away from the spot of the incident. Thereafter, when the police personnel approached the house of the appellant, they found deceased lying dead with bleeding injuries. Learned APP further submitted that the weapon used in the commission of offense and bloodstained clothes of the appellant were recovered during the investigation. The prosecution has proved the case beyond reasonable doubt. The learned Sessions Judge has passed well reasoned order, and no interference is required and requested to dismiss the appeal.

Heard rival submissions of both learned counsel. Perused the impugned judgment and order and documents produced on record.

There is no dispute about homicidal death of the deceased. PW-9, Dr. Shakil Ahamad, Medical Officer at Rural Hospital Karanja, Wardha, who conducted post mortem of the victim has deposed that the cause of death of Laxmi was injury to the vital organ, i.e., the heart, resulting in haemorrhagic shock and cardio-respiratory arrest.

It is necessary to note that the prosecution case rests entirely upon circumstantial evidence. There is no direct evidence on record to establish that the appellant assaulted the deceased or caused the injuries resulted in her death. In such circumstances, it was burden on the prosecution to establish each incriminating circumstances beyond reasonable doubt and form a complete chain pointing towards the guilt of the appellant.

The prosecution case rests on the depositions of PW-1, Digambar Bhankhede and PW-7, Amol Barde, Police Inspector. It has come in the deposition of PW-1 that on 07.04.2014, he was deputed for prohibition raid duty in view of the forthcoming lok sabha election, to keep a check on the selling of illegal liquor, as appellant was indulged in illegal sale of liquor, it was decided to conduct a raid. This witness further deposed that PSI - Sanjay Mate, PW-7 (Amol Barde) and and two pancha witness accompanied him for the raid. The police party stopped its vehicle at some distance from the appellant’s house and proceeded towards the house of the appellant from the backside road of the house. This witness further deposed that in the light of an electric pole, they noticed that at a distance of approximately 20 to 25 feet, the appellant standing and moving near his house, holding a weapon in his hand. Upon noticing the police party, the appellant started running away. The police personal chased him but were unable to apprehend. They took a search of the house of the appellant and saw his wife lying with bleeding injuries on her stomach in a dead condition. He informed PI Wanjari on the phone and thereafter lodged the report. PW-7 has also deposed on similar line. It has come in cross-examination of PW1 that several cases under Maharashtra Prohibition Act, 1949 were registered against the appellant in their police station. It shows PW1 and PW7 may have prejudice against the appellant.

It emerges from the statements of PW-1 and PW-7, two panchas were accompanying the police party when they proceeded towards appellants house. However, the prosecution has not examined those two panchas to establish the alleged presence of the appellant with a weapon at the relevant time and the prosecution is mainly relying on the depositions of PW-1 and PW-7, who are police witnesses. Moreover, it appears from crime detail form at Exh- 83, that incident spot was on outside of the house and two roads were abutted to near the place of occurrence and other houses were located in the vicinity of the appellants house. Nevertheless, no resident of the neighboring house has been examined to establish any circumstance connecting the appellant with assault upon the deceased. The alleged motive and the appellants conduct in leaving the place upon noticing the police party, do not establish that he inflicted the fatal injuries upon the deceased. the alleged act of fleeing upon noticing the police party may give rise to suspicion. However, such conduct cannot be treated as conclusive proof of guilt in the absence of other reliable circumstances forming a complete chain of evidence. It is the defence of the appellant that after completing work in the field, when he went to his house, he saw his wife lying in an injured condition. PW-2 Ganesh Mahille, PW-3 Ramchandra Ghobale, PW-4 Dilip Mune & PW-5 Ramesh Bonde i.e. panch witnesses on spot panchanama, seizure panchanama and inquest panchanama are turned hostile. Nothing elicited in their cross-examination.

In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Hon’ble Supreme Court laid down the five golden principles governing the appreciation of circumstantial evidence. The circumstances from which the conclusion of guilt is drawn must be fully established; the established circumstances must be consistent only with the hypothesis of the guilt of the accused; they must be conclusive in nature and tendency; they must exclude every reasonable hypothesis other than the one sought to be proved; and the chain of evidence must be so complete as to leave no reasonable ground for a conclusion consistent with the innocence of the accused. Thus, the circumstances relied upon by the prosecution must not merely raise a suspicion against the accused. They must collectively lead to the conclusion that, in all human probability, the offence was committed by the accused and that the established circumstances are incompatible with his innocence.

The evidence regarding the alleged recovery of the weapon and the clothes, the inconclusive forensic result concerning the weapon and the absence of other sufficiently cogent circumstances connecting the appellant with the assault required careful consideration in determining whether the prosecution had discharged its burden of proof.

In our view, the prosecution has failed to establish a complete chain of circumstances pointing towards the guilt of the appellant. The two panchas who were present with police raid party have not been testified as witnesses. Merely on the ground that the appellant was roaming with a weapon, it cannot be held that he is responsible for the murder of his wife, as there is no other corroborative evidence produced on record to link the appellant in the present crime. The Chemical Analyser’s report concerning the bloodstains allegedly found on the knife is stated to be inconclusive and does not prove a reliable connection between the weapon and the offence. The prosecution failed to prove the alleged recovery of the weapon used in the crime, as it was recovered after 4 days of the incident, though the appellant was arrested on the next day of the incident, it has not come on record how the appellant was arrested, whether he surrendered or whether he was caught by the police.

In these circumstances, we are of the considered view that the prosecution has failed to prove the guilt of appellant beyond reasonable doubt. The learned sessions judge did not properly appreciated the cumulative effect of the deficiencies in the prosecutions evidence and principals governing case based on circumstantial evidence. The conviction of the appellant, therefore, cannot be sustained and deserves to be set aside.

In view of the above, we pass following order:-